Family Law Blog

“Forum shopping” and habitual residence

19 August 2013, by Taylor King Family Law Solicitors

Taylor King frequently receives enquiries from people overseas about whether or not they can issue divorce proceedings in England & Wales. The matter is governed by Brussels II, which is an EU Regulation on conflict of law issues in family law. There are numerous grounds for jurisdiction set out in Brussels II all of which include an element of “habitual residence”.

Increasingly large numbers of wives of wealthy foreigners are seeking to issue divorce proceedings in London because the English courts are regarded as having a more generous approach to financial settlements. This is known as forum shopping.

The case of Saward v Saward [2013] EWCA Civ 1060 is an example of a wife forum shopping using her husband’s alleged habitual residence in England. The case concerned an application for permission to appeal a decision to set aside a decree nisi on the basis that the husband was not habitually resident in England and therefore the English court did not have jurisdiction.

The husband was a British national and the wife was a national of Romania and Canada. The husband had been living in Spain since 2002. They married in 2009 and the marriage broke down in June 2011. The wife issued divorce proceedings in England in July 2011. The decree nisi was declared on 11th November 2011. The husband succeeded in applying for the decree nisi to be set aside because he was habitually resident in Spain. Permission to appeal was sought by the wife. However, this was refused.

Habitual residence is the place where a person has established, on a fixed basis, the permanent or habitual centre of their interests.

The wife argued that the judge had not taken into account the fact that the husband rented out a house in England, his state and private pensions were English, the majority of his assets were based in England, he had transferred monies from Spain to England, he paid taxes as if he were domiciled in England, he used an address in England for significant legal documents and had not renewed his Spanish residence certificate which had expired in 2009.

However, the appeal was refused because the judge had carefully evaluated all the factors for and against habitual residence and concluded that the factors against habitual residence in England outweighed those for it. Those factors included the length of time that he had resided in Spain and the fact he had residency (despite not applying for it to be renewed), the fact that the matrimonial home was always in Spain and he had no home, car or personal possessions in England and the small number of visits he had made to England. He had recently been in England living on his yacht whilst he refurbished it to take back to Spain.

Black LJ observed that at the time there was no Court of Appeal authority concerning the question of habitual residence in Brussels II but was not persuaded that this was an appropriate case to explore the issue.